Like many of you reading this, I read many different legal journals, mostly online. A great many of those journals are focused on e-discovery, some are more focused on IT security, others on law firms generally, others on the law generally, and so on. What has caught my eye in recent months is how many of those journals, regardless of whether their focus is on e-discovery, the intersection of the law and technology generally, law firms or simply on the law generally, have turned their attention to the intersection of the law and digital technology. In this month's column, I tackle one of the topics discussed in the aforementioned journals to see how that topic has been treated, and then discuss how, in order to test the analysis of and solution to any given problem, the discussion of any given topic must be broadened to discuss all aspects of e-discovery.

The Interconnectivity of Issues

A representative example of the topics discussed in the aforementioned journals are the many pieces that have reported on or made the case that law firms or businesses should bring e-discovery and other legal services in-house. In these pieces, legal services are never defined, but from context it is clear that the term refers to the review of e-discovery, whether a TAR or a review by reviewers contracted by the e-discovery provider (or some other provider). Many of the pieces use the term e-discovery narrowly. They will make the general statement that e-discovery should be brought in-house, but then discuss aspects of e-discovery—forensic data collection, data processing, using a digital review platform, e.g., Relativity—as somehow separate from e-discovery.

The problem with such pieces is that they simply fail to address some of these aspects of e-discovery, along with others, such as redaction of reviewed files and production of those files. This problem is part of a larger, more general problem: the pieces fail to address how all aspects interconnect, and how that interconnectivity can undercut the themes of the pieces.

To illustrate my point, let us begin with looking at the issue of whether law firms should engage a service provider who provides reviewers in large e-discovery matters or whether the firm should have those reviewers in-house. Three points support the argument for bringing such reviewers in-house: that such services are "legal" at heart; that law firms should step up and take on the administrative woes of bringing such part-time reviewers into the firm (even if some reviewers come on and stay full-time as different matters require reviewers, there will always be additional reviewers required on a part-time basis as the volume of matters increases and decreases); and, that law firms can and should profit from supplying such services rather than simply engaging legal service providers who will reap the profits.

In making these arguments, the pieces ignore how they connect with the aforementioned other aspects of e-discovery. A prime example of this is the discussion in many pieces of the IT security of law firms. Many law firms have gotten hacked, many more have been the victims of phishing schemes, i.e., schemes where hackers send emails, phony update packages, requests for "feedback," etc., make calls and so forth to users at law firms, the users respond, the responses allow the hackers to gather information from the digital devices and servers used by the law firms, and highly sensitive information—whether regarding the users themselves, e.g., their bank accounts, Social Security numbers, etc., or the users' clients, e.g., materials provided by the clients for review by the law firms for discovery production—is surrendered to outside parties. The discussions in many pieces pertaining to IT security is generally good, but none of those pieces then ask whether the additional costs of dealing with IT security will drain the profits that ostensibly would come if law firms cut out legal service providers and directly provided the many, many reviewers needed to review large amounts of data in e-discovery matters. Would the costs of maintaining and protecting the data under review exceed the profits legal service providers get, and law firms or large businesses miss, when legal service providers do the reviewing.

Focusing on the interconnectivity of a law firm (or, for that matter, a firm's client) in-house document review and IT security should not mislead the reader to thinking that those two issues are the sole ones discussed in the journals referred to above that interconnect. To pick another popular issue as an example, many of the pieces discuss the selection of e-discovery review platforms and their providers and argue that bringing such services in-house would be best for the law firms. Obviously, if the focus is solely upon profits gained by the legal service providers that the law firms could take were the reviews in-house, as well as that law firm teams at the heart of the litigation should be able to supervise data review better than legal service providers can, the argument for bringing such reviews in-house would be hard to gainsay. Many of the pieces in the journals referred to above do focus solely on these issues. Of course, many other issues are ignored, and those issues make the question far more complex.

Bringing document review in-house would require the law firm to obtain a review platform. That can be done in two ways: develop your own, which is extremely difficult for those who do nothing but develop such tools, and so is not something a law firm could do barring a remarkable, one-in-a-billion scenario, and would be very expensive to develop even if successful; or, license one from a platform provider. The cost of such licensing would be greater for a law firm than for the legal provider, because the law firm would use the platform a portion of the time and then let it sit, but would still have to pay the very high licensing fee, while the legal provider would use the platform all of the time, and so be able to distribute the cost among many more clients; and, get a better price from the platform provider for the individual user-licenses fee because it would have many more reviewers using the platform. Thus, the cost of obtaining a review platform would eat into any profits the law firm would capture from the legal service provider when the firm brought review in-house.

But wait! There's more! Bringing document review in-house would require additional servers and desktop or laptop computers—devices that would have to be kept up and replaced, as well as additional space, for the reviewers—all of which costs large sums of money. Perhaps more importantly, the IT infrastructure in which the review documents reside would have to be protected from hacking, phishing, theft by employees and all other intrusions. Here is where the issue of contracting with legal service providers intersects with another popular topic in the aforementioned journals: law firm data security. As per those journals, said security is awful, and can be made better only by in-house training of anyone who has access to the IT system, as well as better security measures put into place and overseen by IT security providers. Those steps must be taken regardless of whether e-discovery review is brought in-house, but they will cost more if e-discovery review must be accommodated, since the additional servers and desktop or laptop computers would enlarge the IT system considerably and, more importantly, because reviewers—the vast majority of which would be working part-time, which would increase the total number of reviewers working in a given year because some part-time reviewers would not be available when needed, causing the firm to have to have a ready pool of 150% of who was needed to ensure that 100% would always be ready—would have to submit to a background check and be trained in security steps. Furthermore, because reviewers are typically hired part-time, with each review, reviewers would need to be instructed as to security steps and would have to be overseen closely to ensure that they are following instructions. The cost of this supervision is never discussed in the aforementioned journal articles. Finally, the dramatic increase in employees, whether full- or part-time, translates into a need for additional office space. If that space is to be in the same building as where the large law firm's offices are, it would be a matter of luck that such space is available, and rare if it would be contiguous to the existing space. If the space is available, it would cost far more than the space used by a legal service provider, because such providers usually find spaces on the outskirts of the cities where their clients have their offices, where the rental costs are lower and landlords can be far more flexible regarding renting additional office space for a short period of time if a large review matter comes to the provider. If the law firm locates its reviewers in its building, it must extend IT security steps to cover such offices, thereby costing the law firm more; if the firm locates its reviewers in another building, it must start from scratch regarding IT security, thereby costing the firm even more.

Bringing e-discovery in-house raises even more issues. Discussion with the client as to how to preserve pending data collection has always involved law firm counsel, but it usually also involves a computer forensics expert who later would be involved in the collection of data (and so would have to purchase and maintain the proper forensic tools to do so—costly purchases). Should law firms or, perhaps, their larger clients, hire such a forensics expert? The costs would outweigh the benefits unless the firms or larger clients are so deeply involved in litigation to keep the expert occupied full-time—a scenario more likely for a large law firm, but still highly doubtful. For the same reasons as just discussed regarding the cost of hiring only one forensics expert, bringing in additional computer forensics experts to collect the raw data without altering it and so help establish a proper chain of custody would be even more costly than beneficial, as the cost of hiring a team, and equipping them with the proper forensic tools, would be several times the cost of hiring but one forensics expert. And what of the cost of data processing, redaction and production in-house? The additional costs in purchasing the servers and desktop or laptop computers, the tools, getting the proper licenses from those whose applications would be used, as well as the costs of hiring experts to do the processing (with a guru-type expert, who also understands costs, working with attorneys and other highly credentialed persons, and everything else one needs to know to "work well with others" in a business environment, to oversee the other experts), not to mention the additional costs of IT security, would dwarf the savings and other benefits of having these services in-house.

Finally, it must be remembered that the costs of bringing any, not to mention all, aspects of e-discovery production provided by a legal service provider in-house are far greater than the savings because the provider is in business to provide the services while the firm or its client is not. Many providers fail because they cannot manage all of the issues discussed. Those who do not fail spend all of their time managing those issues, looking for new solutions, looking out for new issues, trying to bring in more clients, get (or develop, or both) better platforms, and so on. Law firms who put in the hours and costs of bringing these services in-house simply will not want to hear from their e-discovery department when it has to deal again with any of those issues—we just did that (even if "just" means two years before), and we spent a billion dollars to do so, will be the response from the voices of power. Needless to say, none of the journals touch upon these issues.

Conclusion

It would not be surprising to find that virtually all of the issues discussed in the journals referenced above suffer from the same problem as the one we have looked at here, i.e., that those discussions focus on specific issues without connecting them to the other issues under discussion. It would also not be surprising that, as with the issue we have looked at closely, once all of the other issues under discussion are connected to the other issues, the solutions proposed by the articles in those journals suffer from the same flaws and weaknesses. Absent such testing of the proposed solutions, the value of those solutions is unknown and, given how we do know that the solution proposed for any problem discussed must connect with at least one solution, whether proposed or not, for all of the other problems discussed, readers should be skeptical of, or at least reserve judgment upon, any solution proposed in the aforementioned articles, especially if the proposed solution fails to include any perspective on its connectivity with the proposed solutions to the other problems. The problems in e-discovery may have to be looked at individually to be understood initially, but to choose solutions for them, all of the problems must be looked at together.

Leonard Deutchman is a legal consultant retired from one of the nation's largest e-discovery providers, KLDiscovery, where he was vice president, Legal. Before joining KLDiscovery, he was a chief assistant district attorney at the Philadelphia District Attorney's Office, where he founded the Cyber Crime Unit and conducted and oversaw hundreds of long-term investigations involving cyber crime, fraud, drug trafficking and other offenses. Contact him at [email protected].